Punjab-Haryana High Court
Oriental Bank Of Commerce vs Virender Kumar Sharma And Another on 3 August, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
LPA No.733 of 2012 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA No.733 of 2012 (O&M)
Date of Decision: 03.08.2012
Oriental Bank of Commerce ..... Appellant
Versus
Virender Kumar Sharma and another ..... Respondents
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Jagat Arora, Advocate,
with Mr. R.N. Lohan, Advocate,
for the appellant.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The present appeal under Clause X of the Letters Patent has been preferred against the order of the learned Single Judge dated 01.03.2012 upholding the claim for pension with 12% interest by quashing the impugned orders dated 24.05.2001 (P-6) and 08.03.2002 (P-9) denying the claim. The appellant is the Oriental Bank of Commerce (OBC). The writ petitioner Virender Kumar Sharma the 1st respondent in this appeal was Chairman of a private bank called Bari Doab Bank Ltd. (for short 'BDBL') which was amalgamated with the appellant-Bank under a scheme of amalgamation dated 7.4.1997 (P-1). The employees of BDBL including the writ petitioner - respondent No.1 (for short 'WPR1') held non-pensionable posts. The retirement dues of employees of BDBL included Contributory Provident Fund. It is not disputed that WPR1 retired after amalgamation and while serving OBC on 30.09.1998 on reaching the age of superannuation. LPA No.733 of 2012 (O&M) -2- The service conditions of the amalgamating Bank were made applicable to the employees migrating from BDBL w.e.f. 1.05.1998. Pension was apparently denied to WPR1 on the premise that he had retired prior to the promulgation of the rules governing service set down to be effective from 01.12.1998. The stand of the appellant-Bank was that on 30.09.1998 WPR1 was governed by service conditions of BDBL where there was no pension scheme and, therefore, he is disentitled to pension. To resolve this issue we need not go too far. The magna carta of the amalgamation of the private bank and OBC is the Gazette Notification dated 07.04.1997 issued by the Government of India, Ministry of Finance, Department of Economic Affairs, Banking Division, New Delhi. The rights and obligations of the employees of transferor Bank fall in Chapter V para 7. Para 7(1) reads as follows:-
"(1) All the employees of the transferor bank shall continue in service and be deemed to have been appointed in the transferee bank at the same remuneration and on the same terms and conditions of service as were applicable to such employees immediately before the close of business on 30th September, 1996.
Provided that the employees of the transferor bank who have, by notice in writing given to the transferor or the transferee bank at any time before the expiry of one month next following the date on which this scheme has been sanctioned by the Central Government, intimated their intention of not becoming employees of the transferee bank, shall be entitled to the payment of even compensation, if any, under the provisions of the Industrial Disputes Act, 1947 and such pension, gratuity provident fund and other retirement benefits as may be ordinarily admissible under the rules of authorizations of the LPA No.733 of 2012 (O&M) -3- transferor bank immediately before the close of business on 30th September, 1996."
Para 7(3) reads as follows:-
"(3) The transferee bank shall, on the expiry of a period not longer than three years from the date on which this scheme is sanctioned, pay or grant to the employees of the transferor bank the same remuneration and the same terms and conditions of service as are applicable to the employees of corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees of the transferor bank being the same as or equivalent to those of such other employees of the transferee bank.
Provided that if any doubt or difference arises as to whether the qualifications or experience of any of the said employees are the same as or equivalent to the qualifications and experience of the other employees of corresponding rank or status of the transferees bank or as to the procedure or principles to be adopted for the fixation of the pay of the employees in the scales of pay of the transferee bank, the doubt or difference shall be referred to the Reserve Bank of India whose decision thereon shall be final."
A conjoint reading of the above provisions leave no manner of doubt that WPR1 was wrongly denied pension on an invalid premise. The learned Single Judge has rightly reached the conclusion that WPR1 was entitled to pension on his retirement on 30.09.1998 and pension scheme could be easily worked out qua him by calling upon the retiree to deposit Contributory Provident Fund amounts into the pension fund or else that amount could be adjusted by debiting it with interest @12% as directed by the learned Single Judge.
We called upon the learned counsel for the appellant by order dated LPA No.733 of 2012 (O&M) -4- 06.07.2012 to place on record the pension scheme of the Bank. It has been so done. We have perused the Oriental Bank of Commerce (Employees) Pension Regulations, 1995. Regulation 2(n) defines "employee" and includes person who opts to be governed by these regulations. WPR1 was not granted opportunity to opt for the pension scheme before retirement. Qualifying service has been defined in Regulation 14 which reads as follows:-
"14. Qualifying Service :
Subject to the other conditions contained in these regulations, an employee who has rendered a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension."
Regulation 20 deals with counting of past service in the erstwhile Bank and reads as under:-
"20. Counting of past service in the erstwhile Bank In the case of an employee who is permanently transferred to a service in the Bank from any other Bank on merger, amalgamation of any other Bank with the Bank to which these regulations apply, the continuous service rendered by such an employee in any other Bank on permanent basis, if any, followed without interruption, by permanent appointment, or the continuous service rendered under that Bank in a permanent capacity, as the case may be, shall qualify. Provided that nothing contained in this regulation shall apply to any such employee who is appointed on contract basis or on daily wage basis or on consolidated wages."
These provisions infact support the case of WPR1 and we do not find anything in the regulations which may act as a legal impediment in LPA No.733 of 2012 (O&M) -5- the way of WPR1 from reaping the benefit of pension. In the circumstances, the question of option becomes merely technical. The appellant-Bank would now seek WPR1's option, and in case he so opts, to call upon him to deposit erstwhile employer's share into the pension fund of the appellant as per law and within a reasonable period. In view of the above discussion we find no earthly reason to disagree with the findings of the learned Single Judge based on sound reasoning and not warranting interference at all.
Consequently, we dismiss this appeal .
(HEMANT GUPTA) (RAJIV NARAIN RAINA)
JUDGE JUDGE
03.08.2012
manju